The right of access to criminal trials in particular is properly
afforded protection by the First Amendment both because such trials
have historically been open to the press and public and because such
right of access plays a particularly significant role in the
functioning of the judicial process and the government as a whole.

Globe Newspaper Co. v. Superior Ct., 457 U.S. 596

We are a nation of laws. Our law is created not only via legislation,
but also through the adjudicative process of the courts. Whereas we
generally have open and free access to the statutes that bind us, case
law has had a more mixed history. Earlier
experiments in secret
proceedings did not go well. Western law subsequently developed strong
precedents for
access to judicial proceedings — citing the importance of transparency
in promoting court legitimacy, accountability, fairness, and democratic
due process. When the law is accessible, “ignorance of the law is no excuse”

Legal accessibility has traditionally meant that citizens may review the
law via the contemporary technology, and redistribute it at will. In
ancient courts, this implied open public access to the proceeding
itself. Indeed, the principle was literally built into the architecture
of the courthouses. As American law matured, it incorporated a right to
read and reproduce the text of decisions without paying a license fee.
The Copyright Act specifically exempts all government works from
monopoly protection because such works essentially “belong” to the
people. In the internet age, what constitutes a public right to court records?

[I]t would be an odd result indeed were we to declare that our
courtrooms must be open, but that transcripts of the proceedings
occurring there may be closed, for what exists of the right of access
if it extends only to those who can squeeze through the door?

United States v. Antar, 38 F.3d 1348

Internet natives expect the government to be accessible online. The US
Courts were remarkably prescient in this regard, implementing electronic
access to case information as early as the 1980s. However, this access
came at a price. In order to fund electronic access to court records,
the judiciary decided to charge user fees for every minute of dial-up
access. As the web matured, the courts transitioned to the new platform
and perpetuated a fee-based model. The motivation was understandable:
new services cost money. However, some people began to argue that the
price for this model included not only transaction costs for users, but
also decreased legitimacy, accountability, fairness, and democratic due
process at the heart of of the open access doctrine.

The fee-supported structure of PACER has been allowed by Congress, most
recently in the 2002 E-Government Act. The courts use the fees they
collect from PACER users to maintain and upgrade the PACER system, but
also for for other purposes. The E-Government Act also made clear that
the courts should be moving toward free public access to court records.
Indeed, in February 2009 Senator Joe Lieberman (I-CT) wrote a
letter
to the judiciary encouraging the courts to expand free public access to
court records, and followed
up
in March 2010 indicating that spending on non-PACER expenses may work
against the Act’s mandate.

The Committee intends to encourage the Judicial Conference to move
from a fee structure in which electronic docketing systems are
supported primarily by user fees to a fee structure in which this
information is freely available to the greatest extent possible.

Congress, E-Government Act of 2002

We created RECAP in hopes of hastening the day when court records would
be freely available to the general public via the Internet. RECAP
contributes to this goal in three important ways. Most obviously, we are
directly increasing public access to legal documents by creating a free
repository that anyone can access. Second, by donating bandwidth and CPU
cycles to the cause of public access, we are reducing the load on the
PACER servers and making it feasible for the courts to make more
documents freely available with the computing resources they already
have. Finally, we think that building and running RECAP will give us the
opportunity to study the practical challenges involved in large-scale
open access to public documents. We hope to learn lessons that will help
the judiciary improve its own systems. And we hope our efforts will
inspire the Administrative Office of the Courts to accelerate its own
movement toward an open access regime.